Comparative Delegation Framework by Constitutional Provisions

Abstract

Abstract This chapter explains how, worldwide, many written constitutions have been interpreted to uphold a ‘non-delegation doctrine’, meaning that rulemaking powers may not be transferred at all, although they often do still provide for the possibility of transferring rulemaking power anyway. However, in general, these constitutional provisions appear limited to the exercise of rulemaking by the Legislature and the Executive, considered as the traditional wielders of rulemaking powers. This chapter offers a status quaestionis of how rulemaking powers are exchanged between and transferred to the Legislature, the Executive, and other actors. In doing so, it offers a number of examples of the three outsourcing techniques in the countries researched. The use of the functional, comparative methodology enables proving that the outsourcing of rulemaking powers is inspired by the traditional transfer of rulemaking powers, that rulemaking powers are being increasingly transferred to a myriad of actors, and that the specific techniques to outsource rulemaking powers in the countries researched are remarkably similar.